Citation Nr: 0812781 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-31 835A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for residuals of bypass surgery as secondary to service connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL S.S., the veteran's wife ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to June 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Wichita, Kansas, Department of Veterans Affairs (VA). The Board notes that the veteran's claim was treated as a new and material evidence claim in an April 2007 rating decision. The RO stated that the veteran had not filed a timely substantive appeal. However, a review of the file shows that the veteran filed a notice of disagreement in June 2006, received a statement of the case in October 2006 and filed his substantive appeal in October 2006. Therefore, the veteran's appeal was filed timely and the case does not require new and material evidence to be considered by the Board. The issue before the Board is as stated on the title page of this decision. FINDING OF FACT Competent evidence of a nexus between residuals of bypass surgery and active military service or any service-connected disability is not of record. CONCLUSION OF LAW The veteran's heart condition was not incurred in or aggravated by service, and in-service incurrence may not be presumed, nor was it caused by or proximately due to the service-connected hypertension. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Pertinent Law and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic disability in service or during an applicable presumptive period and still has such disability. Such evidence must be medical unless it relates to a disability as to which, under the United States Court of Appeals for Veterans Claims' (Court's) case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a disability noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including cardiovascular disease, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309(a) (2007). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). It is also noted that service connection may be granted for a disability which is proximately due to and/or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). In order to prevail on the issue of service connection there must be (1) medical evidence of a current disability; (2) medical evidence or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative balance, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b) (West 2002). II. Analysis The veteran contends that his current residuals of bypass surgery is secondary to his service-connected hypertension. In this regard, it is noted that service connection for hypertension has been in effect since November 1989. A review of the veteran's service medical records show that in November 1973, the veteran complained of pain on the left side of his chest. In January 1979, he presented for chest pain and an examination revealed that his heart was regular. In July 1979, a service medical record indicates that he had no heart problems. A review of the veteran's medical records show extensive treatment of a heart condition after service. In January 2004, the veteran had a catheterization, which showed anterior descending and right coronary artery disease. In January 2005, the veteran presented with chest pain and reported that he had been experiencing this pain for over two years. He reported having a significant family history of heart problems. The veteran underwent a ventricular extrasystoles coronary artery bypass graft in January 2005. The examiner noted that the veteran had quit smoking 10 years prior to the examination, but had a history of smoking two packs per day for 30 years. He also drinks one to two beers per week. In February 2005, the veteran was diagnosed with post-pericardiectomy syndrome. There was no pulmonary vascular congestion or effusion. The examiner noted that the veteran's chest pain maybe secondary to angina, bone pain or pericarditis. The examiner later noted that his EKG was not suggestive of pericarditis but rather of ischemia. The veteran also appeared for pain in his chest with feelings of swelling. There was no evidence of cardiac enlargement or central or peripheral pulmonary congestion. In October 2005, the veteran presented for atypical chest pain. The examiner stated that since January 2005, he has been experiencing precordial chest pain. His chest pain was assessed to be musculoskeletal. The veteran received a VA examination in November 2005. The examiner stated that the veteran's heart condition is less likely than not caused by or a result of hypertension. The examiner went on to say that, the veteran shows coronary artery disease without any indications of being aggravated by hypertension. The veteran's heart is not enlarged and he does not have left ventricular hypertrophy. The examiner also noted that the veteran stopped taking his blood pressure medication a month prior to his visit. The examiner stated that the veteran's current heart condition is most likely secondary to lifestyle, noncompliance and genetics, rather than the fairly well controlled hypertension without evidence of left ventricular enlargement. Although a current diagnosis of a heart condition is present and the veteran is service connected for hypertension, the competent and credible evidence fails to show that entitlement to service connection on a secondary basis is warranted. In fact, there is no competent evidence of a nexus between the veteran's heart condition and his service- connected hypertension. The record shows a family history of heart problems, noncompliance with medication for diabetes and hypertension and risk factors for a heart condition such as tobaccoism and alcohol abuse. The VA examiner stated that the veteran's heart condition is less likely than not related to his hypertension. As the examiner could not find a link between the veteran's current heart condition and his service-connected hypertension, there is no competent and credible evidence to support the claim of entitlement to service connection on a secondary basis. The competent and credible evidence of record also fails to substantiate the claim on a direct basis. The service records show no evidence of a heart condition during service. In addition to the foregoing, there is no evidence that the heart condition presented within one year of the veteran's discharge from service. The evidence clearly shows that his heart condition manifested many years after service and is not related to service. In a hearing before the undersigned, the veteran stated that Dr. S. R. related his heart disorder to his hypertension. The Board reviewed the file and found a letter written by Dr. S. R. in September 2006, linking the veteran's cerebrovascular accident with his hypertension and diabetes. The letter links the veteran's stroke with his hypertension and diabetes not his heart condition. Thus, the opinion is of little or no probative value in this case. The Board is also aware of the veteran's contention that his VA examination was inadequate because the examiner was a nurse practitioner and not a cardiologist. A medical opinion need not be by a physician to be competent medical evidence, and, in the absence of evidence to the contrary, the Board may presume the competence of a VA medical examiner. See Cox v. Nicholson, 20 Vet. App. 563, 568 - 570 (2007) (rejecting argument that a medical opinion by a nurse practitioner is not competent medical evidence, and, rejecting argument that VA cannot rely upon a medical opinion that does not explicitly state the qualifications of the examiner); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presumption of regularity doctrine permits courts to presume what appears regular is regular and shifts the burden to the attacker to establish the contrary). The veteran has pointed to no flaws in the examiner's opinion other than he believes the evidence leads to a different conclusion. However, the veteran is a layperson and thus is not qualified to determine the etiology of his heart condition. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Furthermore, the Board has reviewed the examination and found it to be thorough and comprehensive. Pursuant to 38 C.F.R. § 3.159(c)(4), a further medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. Here, however, the opinion provided by the November 2005 examiner is sufficient to decide the claim. The Board has considered the applicability of "benefit of the doubt" doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. Rather, in this case, the preponderance of the evidence weighs against the claim. Thus, the veteran's claim of entitlement to service connection for bypass surgery as secondary to his service-connected hypertension or to service, must be denied. III. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and that VA will request that the claimant provide any evidence in his possession that pertains to the claim. The Board concludes that the veteran has been afforded appropriate notice under the VCAA. The RO provided VCAA a notice letter to the veteran in October 2005, prior to the initial adjudication of the claim. The letter notified the veteran of what information and evidence must be submitted to substantiate a claim for service-connection. As to informing the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The VCAA letter of October 2005 stated that he would need to give VA enough information about the records so that it could obtain them for him. Finally, he was told to submit any medical records or evidence in his possession that pertained to the claim. The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Elements (1), (2) and (3) (veteran status, current existence of a disability and relationship of such disability to the veteran's service), have been satisfied with an October 2005 letter. Regarding elements (4) (degree of disability) and (5) (effective date of the disability), he was provided with notice of the type of evidence necessary to establish a disability rating in an August 2006 letter. While this letter was sent after the December 2005 decision, the Board determines that the veteran is not prejudiced, because he had a meaningful opportunity to participate effectively in the readjudication of his claim in November 2007. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the veteran's service medical records and VA treatment records. VA also provided the veteran with an examination in connection with his claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for residuals of bypass surgery as secondary to service connected hypertension, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs